Big deal over microscope money looks to be settled

Graphics

This is a story about a super-cool electron microscope, a rich international corporation, the proper use of public funds, and the collision of two headstrong local politicians who don't much like each other.

It began when Orange County District Attorney Tony Rackauckas became one of the only local public officials in the nation to sue Toyota for deceptive business practices a few years back. His less generous critics called it a shakedown suit for the sole benefit of lining lawyers' pockets, but with little, if any, benefit for the citizens of Orange County.

The D.A. lashed back, saying his intent was to protect consumers from unfair business practices and to stop Toyota from putting sales over safety. Toyota settled for $16 million, and the D.A. said half would go for gang suppression, a quarter for an outside law firm's fees and expenses, and the rest for his office's prosecution-of-financial-crimes account and to cover its own legal costs.

So when Rackauckas asked for permission to spend $300,000 of that Toyota settlement to buy the Sheriff's Department crime lab a new Scanning Electron Microscope with Electron Dispersive X-ray detector (SEM/EDX) – “The new equipment, which will be used in many vital areas of forensic casework, including: metallurgy, crime scene investigation, explosives, trace and particulate analysis, and firearms is essential to evidentiary analysis in criminal investigations for local law enforcement agencies” – Supervisor Todd Spitzer was the one who lashed back.

What on earth did a crime lab microscope have to do with consumer protection? asked Spitzer back in December.

Important background: Even though the D.A. is independently elected, the Board of Supervisors still holds the purse strings. And on that board sits Spitzer, a lawyer, who has long crusaded against “frivolous lawsuits” as a state assemblyman and supporter of groups like Citizens Against Lawsuit Abuse.

Also: Spitzer was an assistant D.A. until Rackauckas fired him after an acrimonious fallout back in 2010.

Bad blood aside, Spitzer's alarm bells went off, and he asked the county's lawyers to look into the legality of spending the Toyota money this way. The new microscope is certainly needed and the purchase indeed worthy, Spitzer said, but he warned darkly about officials going to extremes to fill holes in public budgets. “The last person who made the argument that you could push the edge of the envelope because you needed more money for stuff was Bob Citron,” Spitzer said.

Citron, of course, put gobs of public money in risky investments that imploded, losing $1.64 billion and ushering in Orange County's historic bankruptcy in 1994.

So at first, the D.A.'s chief of staff argued that the Toyota settlement money isn't restricted to only consumer protection. “The people who had damages from Toyota were compensated by Toyota. So basically they paid money to settle with us for the betterment of the community, and this is clearly something for the betterment of the community,” Susan Kang Schroeder told us.

An opinion from the county's lawyers essentially concluded that the Toyota money had to be spent on consumer protection, and that even the fanciest dancing probably couldn't make an electron microscope a consumer protection item, according to Spitzer (though we weren't allowed to see that opinion, as the county cited “attorney-client privilege”).

Joe D'Agostino, senior assistant D.A., said the opinion wasn't quite so clear-cut. “I'd say that question was still open to debate,” D'Agostino said, adding that all this budget stuff drives him crazy.

After the D.A. got the microscope request from the crime lab, it simply started looking for ways to pay for it, he said. The Toyota settlement seemed a possibility – as did consumer protection money in a Proposition 64 account (which sought to limit frivolous lawsuits). But that would require a specific nexus between the microscope and consumer protection – not much of a problem with environmental cases, but perhaps more of a stretch for straight crime – and then the county CEO's office piped in with, “Hey, public safety sales taxes are coming in about 1.5 percent higher than expected. Why not just pay for the microscope from that?”

D'Agostino laughed. “So we said, fine, OK, good suggestion. And that's pretty much it,” he said. “All the other questions were unresolved and didn't need to be resolved.”

And so today, the D.A.'s request goes back to supervisors, omitting consumer protection language entirely and specifying that the $300,000 will come from public safety sales tax funds. Hitachi High Technologies America Inc. was the lowest responsible bidder; the scope comes with a 5-year maintenance service agreement, and supervisors are finally expected to give it their blessing.

The D.A.'s suit against Toyota left a bitter taste in many mouths – Lucy Dunn, president of the Orange County Business Council, perhaps most fierce and furious among them.

She equated Rackauckas to Dug, the talking dog easily distracted by squirrels in the Disney movie “Up,” and said that his lawsuit “smells like pile-on frivolous litigation benefiting contingency fee lawyers, not the public,” and that any Orange County win would just be paid by consumers in the long run.

She was edified to know that the Toyota money wouldn't be touched to pay for the microscope. “Spitzer worked hard to see it done right by the DA,” she told us by email.

Spitzer said he wasn't trying to bust Rackauckas' chops.

“I have a long history involved in stopping shakedown lawsuits in the state of California, and after due diligence and working with county counsel and the crime lab and internal auditors, it became abundantly clear that the microscope is not for consumer protection,” he said. “I'm really pleased we're allocating funds for this much-needed microscope – the old one was broken – from the proper source.”

This may not be the last you hear of this little episode and the Toyota suit: Spitzer has long had his eye on Rackauckas' job, and the two may soon be battling for the office.

User Agreement

Keep it civil and stay on topic. No profanity, vulgarity, racial
slurs or personal attacks. People who harass others or joke about
tragedies will be blocked. By posting your comment, you agree to
allow Orange County Register Communications, Inc. the right to
republish your name and comment in additional Register publications
without any notification or payment.